Wolterstorff on the Competing Conceptions of Justice 1.1

Part 1 of Justice represents Wolterstorff’s critique of the historical narrative offered by “right order” theorists and a vindication of a counter-narrative. He begins by asserting that right order folks have been so busy locating the origins of natural rights thinking in some historical context (typically a point of perceived historical decline) that they have neglected “the systematic development of their own conception” of rights qua rights. (21) Wolterstorff graciously offers to step into the breach and fill in the right order gap. A bit arch, perhaps, but in the subsequent 20 pages I adjudge that Wolterstorff has done an eminently fair job of drawing out the implications of right order thinking about rights and presenting an analytic account of them.

I also adjudge that it would unduly tax the patience of any reader of this blog to summarize Wolterstorff’s step-by-step appraisal of the thesis that unifies Alasdair MacIntyre, Oliver O’Donovan, Joan Lockwood O’Donovan, Leo Strauss, and, behind them, Michel Villey (i.e., that history has witnessed the degeneration of “the right” into “rights”). Wolterstorff largely relies on others who have mined the primary sources of legal thought from late Roman (secular and Christian) through medieval to early modern times: Charles Donahue, Richard Tuck, and Brian Tierney principal among them, but also Robbie George, John Witte, and Charles Reid (who is, for not having come to Regent when invited, suffering his just desserts by spending yet another winter in frigid Minneapolis). Drawing on such writers Wolterstorff confidently concludes that the idea of natural, subjective rights can be found in all periods of the Western legal tradition; “rights” are simply not the constructs of Enlightenment thinkers or even medieval nominalists.

Even so, Wolterstorff acknowledges, a natural order theorist could reply that, while subjective, natural rights exist, they do so only because “they are conferred on the bearer by some external norm or standard.” (63) In other words, rights do not subsist in humans qua humans but in humans “as a result of” something or other. Whether such an understanding is correct or whether it is correct to say that rights inhere in the worth of the bearer is Wolterstorff’s next question.